IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120021114 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of her records as follows:

* issuance of a new scroll in the rank of captain (CPT) and with a date of rank as 29 July 2011
* service credit for the gap between 29 July 2011 and 4 November 2012
* issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for full performance of active duty for training (ADT) from February to September 2012
* cancellation of her transfer orders to the U.S. Army Reserve (USAR) unit in Starke, FL

2.  The applicant states 

	a.  The U.S. Army Human Resources Command (HRC) originally processed her scroll into the USAR when she was a first lieutenant (1LT) in June 2011.  She was promoted to CPT on 1 July 2011 and discharged from the Regular Army (RA) on 28 July 2011.  She received separation orders and a DD Form 214 as a CPT with an effective date of discharge as 28 July 2011. 

	b.  She took an Oath of Office into the USAR as a CPT with an effective date of 29 July 2011.  She inprocessed into Joint Detachment Honolulu (JDET-HON) with no issues and it wasn't until September 2012 that an HRC case specialist, Mr. RH, notified the JDET-HON Army Program Manager, Major (MAJ) LM, that she may have been inprocessed into the USAR incorrectly and she may incur a break in service because of the scroll rank discrepancy. 
	c.  She completed periods of inactive duty training (IDT), annual training (AT), and ADT days throughout 2011 and 2012 at the U.S. Army Pacific Command (PACOM) Joint Intelligence Operations Center (JIOC) and also received AT and Active Duty for Operational Support (ADOS) orders for PACOM Joint Interagency Task Force (JITF) West to start on 29 October 2012.  Her original ADOS orders given on 26 September 2012 were incorrect because they showed her reporting to JIATF West in Hawaii but attached to JIATF South in Florida and that is probably why HRC reassigned her to a USAR unit in Starke, Florida.  However, she never requested a transfer of units and she thought the matter was resolved since she received an amendment to her ADOS orders which showed her reporting to JIATF West in Hawaii and not JIATF South.

3.  The applicant provides 

* Orders 123-0003 and 165-0019 (discharge from active duty orders and amendments)
* DD Forms 214, ending on 28 July 2011 and 28 September 2012
* Email exchange
* DA Form 4651 (Request for Reserve Component Assignment Orders)
* DD Form 2648 (Preseparation Counseling Checklist for Active Duty Component Service Members)
* Orders T-01-200919, T-01-200919A01, and T-01-200919A02 (orders to active duty and two amendments)
* Orders T-10-238582 and T-10-238582A01 (AT orders and amendment)
* Orders T-09-238128, T-09-238128A01, and T-09-238128R (ADOS orders, amendments, and revocation)
* DA Form 71 (Oath of Office - Military Personnel)
* Appointment memorandum to 1LT
* Orders C-09-213559 and C-10-214523 (reassignment in the USAR)
* Army Reserve Personnel Command (ARPC) 249-E (Chronological Statement of Retirement Points)
* Self-authored timeline
* Unit Manning Report
* Orders T-11-239274 and T-11-239274A01 (ADOS and amendment)
* Orders T-10238852 (Orders to AT)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as an RA commissioned officer in the rank of second lieutenant and she executed an oath of office on 8 May 2008.  

2.  She attended and successfully completed the Military Intelligence Basic Officer Leader Course from 21 July to 29 October 2008.  She was promoted to 1LT on 30 November 2009.

3.  On 28 April 2011, she submitted a DA Form 4651 wherein she indicated that upon completion of her active service, unless sooner authorized, she voluntarily accepted an assignment to the J-1 PACOM Augmentation Detachment, a troop program unit of the USAR.

4.  On 3 May 2011, subsequent to what appears to be an approved voluntary request for resignation, Headquarters, 1st Infantry Division, Fort Riley, KS, published Orders 123-0003, ordering her discharge from active duty effective 28 July 2011.  Her rank is listed as 1LT.

5.  On 2 June 2011, she was appointed (scrolled) by the Secretary of Defense in the Reserve of the Army under Title 10, U.S. Code, section 12203, as a 1LT. 

6.  On 10 June 2011, Headquarters, HRC, Fort Knox, KY, published Orders   161-156 promoting her to CPT effective 1 July 2011.  

7.  On 14 June 2011, Headquarters, 1st Infantry Division, Fort Riley, KS, published Orders 165-0019, amending her discharge orders to show her rank as CPT instead of 1LT.

8.  She was honorably discharged from active duty for miscellaneous/general reasons on 28 July 2011.  Her DD Form 214 shows she would be assigned to the J-1 PACOM Augmentation Detachment, Honolulu, Hawaii. 

9.  On 29 July 2011, she executed an oath of office as a Reserve commissioned officer.  The rank on the oath of office is hand-written as "Captain." 

10.  Also on 29 July 2011, HRC issued her an appointment memorandum showing she was scrolled on 2 July 2011 for appointment as a 1LT in the USAR effective 29 July 2011.  

11.  On 18 January 2012, HRC published Orders T-01-200919 ordering her to ADT effective 1 February 2012, for a period of 59 days.  On 7 February 2011 and on 22 May 2012, amendment orders were issued to change the period of ADT to 121 days and 241 days respectively.

12.  She submitted a DD Form 214 that shows she entered active duty on 1 February 2012 and she was released from active duty on 28 September 2012. 

13.  On 26 September 2012, HRC published Orders T-09-238128 ordering her to ADOS for Reserve Component support effective 1 October 2012 for a period of 250 days and on 5 October 2012, amendment orders were issued to change the period of ADOS to 242 days.

14.  On 10 October 2012, HRC published Orders C-10-214523 releasing her from assignment to JIPAC Augmentation Detachment - Honolulu and further assigning her to the 3rd Battalion, 348th Regiment, Starke, FL, effective 1 October 2012.  Also on 10 October 2012, HRC published Orders C-09-213559R revoking Orders C-09-0213559, dated 19 September 2012, pertaining to her reassignment. 

15.  On 12 October 2012, HRC published Orders T-10-238582 ordering her to AT effective 15 October 2012 for a period of 12 days and on 22 October 2012 amendment orders were issued to change this period to 5 days.

16.  On 30 October 2012, HRC published Orders T-09-238128R revoking Orders T-09-238128, dated 26 September 2012.

17.  On 31 October 2012, HRC published Orders C-10-214523R revoking Orders C-10-214523, dated 10 October 2012 pertaining to her reassignment to Starke, FL.

18.  On 5 November 2012, she was appointed (scrolled) by the Secretary of Defense in the Reserve of the Army under Title 10, U.S. Code, section 12203, as a CPT.

19.  On 16 November 2012, HRC published Orders T-11-239274 ordering her to ADOS for Reserve Component support effective 19 November 2012 for a period of 222 days. 

20.  An advisory opinion was obtained from Officer Accession Branch, HRC, on 7 February 2013 in the processing of this case.  An advisory official stated:

	a.  Reference Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004.  In this Executive Order, the White House has delegated authority of the President to appoint officers in the USAR to Secretary of Defense with no further sub-delegation authorized.  On 1 July 2005, the directive was issued that all officers appointed into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before an Oath of Office can be initiated.

	b.  [Applicant] called HRC Officer Accessions Branch for scroll submission 18 April 2011 at her current rank of 1LT which was submitted to the Secretary of Defense and returned confirmed on 2 June 2011.  However, scroll confirmation is rank specific for officers transitioning from Regular Army to the Reserve.  She was promoted on active duty prior to her discharge; therefore, the scroll for 1LT was not sufficient to process her Reserve commission.  Upon notification of her promoted rank, the scroll was resubmitted in the rank of CPT on 1 October 2012, and was confirmed on 5 November 2012.

	c.  [Applicant] was incorrectly accessed into a TPU status which was not officially sanctioned by confirmation.  This manual loading of Soldiers to units without proper authorization and bypassing the HRC Officer Accessions Branch for proper review and processing of an official USAR commission has and will continue to be a reoccurring cause for Army Review Boards Agency resolution. 

	d.  As documented, [Applicant] was separated on 29 July 2011; however, her scroll approval for USAR appointment was not confirmed until 5 November 2012. Her appointment memorandum reflects her approval date which results in the break in service discrepancy.  This discrepancy can be corrected by an officially directed Army Board for Correction of Military Records (ABCMR) decision directing a defacto appointment to 30 July 2011 [sic] (29 July 2011) for her.

21.  The applicant was provided with a copy of this advisory opinion and agreed. She also added that the date of appointment should be 29 July 2011 not 30 July 2011 since she was discharged from active duty on 28 July 2011. 

22.  Title 10, U.S. Code (USC), section 12203 provides that appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order (E.O. 13384, Section 1, 27 July 2005).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected as follows:

* issuance of a new scroll in the rank of CPT with a DOR as 29 July 2011
* Service credit for the gap between 29 July 2011 and 4 November 2012
* Issuance of a DD Form 214 for full performance of ADT from February to September 2012
* Cancellation of her transfer orders to the USAR unit in Starke, FL

2.  With respect to the scrolling issue:

	a.  When the applicant resigned and requested a TPU assignment in the USAR, she was holding the rank of 1LT.  She was scrolled and confirmed on 2 June 2011 for appointment in the USAR in that rank.  However, shortly before her discharge, she was promoted to CPT on 1 July 2011.  She was honorably discharged on 28 July 2011.  

	b.  Scroll confirmation is rank specific for officers transitioning from RA to the USAR.  She was promoted on active duty prior to her discharge; therefore, the scroll for 1LT was not sufficient to process her Reserve commission.  Upon notification of her promoted rank, the scroll was resubmitted in the rank of CPT on 1 October 2012, and was confirmed on 5 November 2012.

	c.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.    Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.  Consequently, based on the authorities cited above, any correction to the applicant's effective DOR would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

	d.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending the applicant's DOR to CPT to 1 July 2011 (the original date of promotion) and granting her defacto status in this rank from 29 July 2011 to 4 November 2012.  In other words, she should keep the pay of an O-3 since she performed the duties of that office or grade. 

3.  With respect to service credit, any USAR service performed by the applicant between 29 July 2011 and 4 November 2012 would be recorded on her ARPC 249-E and, now that this Board has corrected her records, should be addressed/documented through her unit administrator and/or HRC officials.  

4.  With respect to the issuance of a DD Form 214 capturing her ADT service from February to September 2012, she has already received a DD Form 214 for this period of service.

5.  With respect to cancellation of her transfer orders to a USAR unit in Starke, FL, she was issued orders by HRC on 10 October 2012 releasing her from assignment to JIPAC Augmentation Detachment - Honolulu and further assigning her to the 3rd Battalion, 348th Regiment, Starke, FL, effective 1 October 2012.  However, on 31 October 2012, HRC published another set of orders revoking the orders, dated 10 October 2012, pertaining to her reassignment to Starke, FL.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DOR to CPT to read 1 July 2011 and granting her defacto status for pay purposes from 29 July 2011 to 4 November 2012. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing her scroll date and granting her service credit. 



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120021114





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ABCMR Record of Proceedings (cont)                                         AR20120021114



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